By Selena Besirevic, Senior Attorney
Not every case has to end up in Court and before a Judge. Skilled attorneys will know which case has to go to Court and which case can and should be resolved outside of Court. Going to trial is not always what is best for that person or their families and if the attorney is not skilled enough to recognize that and advise you properly, or simply refuses to mediate the case because of their personal need for litigation and conflict, that attorney may not be the right fit for you if you are looking for amicable way of resolving your family matter.
Mediation is a process where parties attend a meeting with a neutral third-party mediator who has been trained to handle situations like yours and has the skills to try to get the parties to the middle ground without going to Court. In most counties in Colorado, mediation is mandatory before the Judge will even allow the case to move forward to the trial, but more than that, each case should go to mediation first regardless if the Court orders it or not (unless there are circumstances that would make it too dangerous to mediate, such as domestic violence, etc.).
Mediators do not pass judgment and do not make decisions in any way. They are simply there to help you facilitate an agreement, if possible. You can sit in the same room with the mediator and the opposing side, or you can be in separate rooms and the mediator will go back and forth with proposals. If you do not reach an agreement at the end of the session, you simply continue with the case through the courts and no final decision is made until you appear before the Judge. You are allowed to have your attorney at mediation, which is typically the case in family law matters, but you can also chose to handle it on your own and possibly have an attorney on standby for consultation. Do not disregard attorney’s role in the mediation process and attendance at the session, because attorneys can provide you with the insight of the mediation process and recognize some of the strategies applies that may not benefit you the best.
Mediation process can be very beneficial, and it can save you enormous amount of stress, it can shorten the time the process takes with the Court and it saves you money by avoiding long, drawn out Court battle. However, it’s not for everyone. Here are some benefits and risks of mediation:
- Mediators are neutral. This means they are not on anyone’s side, or another way to look at it, they are on both of your sides. They do not represent either one of you so you can be assured that you will be hears and you will get to tell your story without pushback that you might get from the opposing counsel.
- Mediation process is private and confidential. This means that nothing you say in the mediation session can be later brought up in Court. This leaves room for you to be open and honest throughout the mediation process without the fear of saying something wrong or something that could hurt your case later down the line if the mediation fails.
- You control the outcome. The phrase “I want my day in Court” is wrongly defined in today’s world, in my opinion. Having your day in Court does not necessarily mean that you need to literally go to Court to have your voice heard. In fact, majority of time, your voice is not heard in Court because of all the rules, evidence laws, Judge’s discretion, etc. Many times, you may not even get to present some of your testimony or documents because it might be barred by the law. Mediation is where you get your day in Court by being in control of the outcome, of what you want to give away in order to gain something else, and you get to say your story without interruptions or rules.
- Agreements made in mediation are more likely to be kept and last long terms because no one was forced by the decisions, as you would be if you go to trial.
- Mediators cannot give you legal advice. So if you are not represented by an attorney, you may be stuck in mediation session not knowing if an offer is good for you or if you’d have a better chance going to Court.
- You may feel pressured to come to an agreement by the other side (not mediator) because they are holding on to something that is very important to you ad won’t budge on it until you give up something. This sometimes leaves the feeling of defeat as if you caved in.
- If the other side has an attorney present at mediation, and you do not, you might be at risk to come to an agreement that does not benefit you but you were pressured by the attorney.
- Mediation may fail and you may end up feeling hopeless and just ready to give it all up. In that case, take a few days and let it all settle in. Mediations can be exhausting and emotionally draining but know that it’s normal to feel that way because you are trying to mediate your life and your next chapter, so it’s only natural that you feel a bit emotional or drained.
- Remember, mediation is there to give you the opportunity to settle the matter as peacefully as possible and outside of Court. It is not there to take things away from you and overpower you. One seasoned attorney once told me at the beginning of my law career that if mediation is successful, both parties will feel like they won and lost at the same time. Because in order for mediation to be successful, you have to lose some to win some, you just have to know what are you willing to give up in order to get something that’s more important to you. That where a skillful mediator and attorneys come in to help you evaluate that.
We are Rutherford Law Center are certified mediators as well as skilled attorney who can help you achieve just that. If you have any questions or need our help, please call us at 303-431-0415.